NEA Update - Artists in Rhode Island sue to block “Gender Ideology” language

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It’s been another busy week. 

Some of you may have attended the webinar that Brett Egan, President of the DeVos Institute of Arts and Nonprofit Management, and I presented on Monday about the impact of recent Executive Orders on arts and nonprofit funding, particularly with respect to the National Endowment for the Arts. 

In that webinar, we noted that this is a rapidly changing landscape in which the NEA’s own legal requirements are being regularly updated in response to legal challenges. We stressed that grant applicants need to keep monitoring the NEA website for potential updates as new court orders pausing various provisions of the Executive Orders and other actions by the administration that have prompted changes to funding guidelines. 

That advice stands. We do, however, have reason to think that there may be additional changes coming to the NEA grant guidance in the coming weeks.  

By way of background, there are two Executive Orders which initially prompted the NEA to update its Legal Requirements and Assurances of Compliance in mid-February. EO 14173, often referred to as the “DEI Order”, triggered the language requiring all grant applicants to attest that, “The applicant will not operate any programs promoting ‘diversity, equity, and inclusion’ (DEI) that violate any applicable Federal anti-discrimination laws, in accordance with Executive Order No. 14173.” 

EO 14168, which I’ll call the “Gender Ideology Order”, led to the added statement that, “The applicant understands that federal funds shall not be used to promote gender ideology, pursuant to Executive Order No. 14168, Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”

Just last week the NEA noted that applicants would not be required to comply with the language above regarding the DEI Order. This was in response to the preliminary injunction issued in National Association of Diversity Officers in Higher Education et al. v. Donald J. Trump et al. (Case No. 1:25-cv-00333-ABA) filed in the U.S. District Court for the District of Maryland, which ordered the government to cease enforcement of the portions of the DEI Order which affected federal grants. 

On Monday we reported that there had been no direct challenge to the NEA’s changes to its legal requirements for grantees, and further noted that there had been no legal decision by any court interpreting the federal funding language in the Gender Ideology Order. 

As of Thursday, both of these facts have changed. 

On March 6, 2025, the ACLU filed a complaint in Rhode Island Latino Arts v. National Endowment for the Arts on behalf of four arts organizations - Rhode Island Latino Arts, National Queer Theater, The Theater Offensive, and Theatre Communications Group - against the NEA and Mary Anne Carter as acting NEA Chair directly challenging the requirement that federal funds may not be used to promote gender ideology. 

This is a brand new case which argues that the requirement violates the First Amendment by discriminating against specific viewpoints, the Fifth Amendment because it is unconstitutionally vague, and multiple aspects of the Administrative Procedure Act. The Plaintiffs have requested that the Court issue a preliminary injunction or temporary restraining order before the NEA Grant Portal submission deadline of March 24, 2025. 

In the meantime, in an unrelated case addressing the Gender Ideology Order, PFLAG, Inc. v. Donald J. Trump (Civil No. 25-337-BAH), the Court ordered that the Government could not enforce the funding restrictions in the Gender Ideology Order in the healthcare context as it applied to gender affirming care for individuals under 19. It remains unclear whether this injunction will extend throughout the government. If it is extended, it could prompt changes at the NEA without a decision in the Rhode Island case. Even if this decision remains limited to healthcare, it is indicative of the continued willingness of District Courts throughout the U.S. to pause portions of these orders which are negatively affecting individuals and organizations. 

For now, the advice presented earlier stands - keep checking the NEA site updates and make sure that before finalizing any NEA grant applications, all language is current and up to date.  There will likely be more change to come.

This material presented for informational purposes only. Not intended as legal advice.